Brandon v. Williams, et al.

Filing 89

ORDER signed by Magistrate Judge Dennis M. Cota on 2/12/20 DENYING 85 Motion to Appoint Counsel. (Plummer, M)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAIAN BRANDON, 12 13 14 No. 2:14-CV-2883-TLN-DMC-P Plaintiff, v. ORDER L. WILLIAMS, et al., 15 Defendants. 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 17 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for the appointment of counsel 19 (ECF No. 85). 20 The United States Supreme Court has ruled that district courts lack authority to 21 require counsel to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. 22 Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the 23 voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 24 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 25 A finding of “exceptional circumstances” requires an evaluation of both the likelihood of success 26 on the merits and the ability of the plaintiff to articulate his claims on his own in light of the 27 complexity of the legal issues involved. See Terrell, 935 F.2d at 1017. Neither factor is 28 dispositive and both must be viewed together before reaching a decision. See id. In Terrell, the 1 1 Ninth Circuit concluded the district court did not abuse its discretion with respect to appointment 2 of counsel because: 3 4 5 6 7 . . . Terrell demonstrated sufficient writing ability and legal knowledge to articulate his claim. The facts he alleged and the issues he raised were not of substantial complexity. The compelling evidence against Terrell made it extremely unlikely that he would succeed on the merits. Id. at 1017. In the present case, the court does not at this time find the required exceptional 8 circumstances. Plaintiff states that appointment of counsel is necessary to represent him at trial. 9 See ECF No. 85, pg. 1. Plaintiff’s motion will be denied because the issues involved in this case 10 are not factually or legally complex, plaintiff has demonstrated an ability to articulate his claims 11 on his own, and, though plaintiff’s claims have survived summary judgment, the court cannot say 12 that plaintiff has demonstrated a likelihood that he will ultimately prevail on the merits. Notably, 13 plaintiff’s current motion does not outline any exceptional circumstances justifying the 14 appointment of counsel. 15 16 Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for the appointment of counsel (ECF No. 85) is denied. 17 18 19 Dated: February 12, 2020 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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